How Does Fair Use Fit Into The Critique Of Copyright?

from the reclaiming-fair-use dept

Here is Part II of our excerpt from Chapter 1 of Reframing Fair Use by Patricia Aufderheide and Peter Jaszi, which is our May selection for the Techdirt Book Club. You can read Part I here. We'll have another excerpt soon, and will be scheduling the author chat in the near future.

Fair use was in eclipse for decades, with judges, lawyers, legal scholars, and creators unsure of its
interpretation and convinced of its unreliability. Since the late 1990s, fair use has returned to the
scene, and has become a sturdy tool for a wide range of creators and users. This transformation has
been remarkable; we discuss it in detail in Chapter 5, and provide highlights here.

It happened in part because of changing scholarship. A generation of legal scholars has developed
arguments for fair use as they have analyzed copyright’s effect on cultural expression. At the same
time, cultural studies scholars have showcased the relevance of fair use to their work, which often
involves analyzing popular culture. Teachers and scholars are beginning to take up the fair use
banner, publicly using their rights and encouraging their students to do the same.

Settled, established communities of creators, administrators and users—filmmakers, teachers of
English and visual art, librarians, makers of open course ware, poets, and dance archivists--have
identified fair use as a necessary tool for them to use to achieve their missions. They have turned
to the sturdy tool of consensus interpretation, by making codes of best practices in fair use through
their professional associations.

Members of these communities have become active advocates for fair use. Their organizations and
representatives have appeared before the Copyright Office to testify about the way that the DMCA,
which makes illegal the breaking of encryption on DVDs, limits their ability to employ fair use in
their work.

Remix artists of all kinds, working online, have come to adopt the claim of fair use as an anti-corporate banner. They trade information on fair use in conferences and conventions. When they
receive takedown notices on YouTube, they issue counter-takedown notices and explain why their
uses are fair. Remixers have also gone before the Copyright Office to protest the way that the
DMCA impedes their creations, which are often socially critical.

New businesses have flourished employing fair use, and their trade associations have supported
them. Google, the Consumer Electronics Association, and the Computer and Communications
Industry Association have all advocated for fair use. Legal and professional services for communities
of practice, such as lawyers and web developers, have built their fair use expertise to serve their
clients better.

Think tanks and advocacy organizations have promoted fair use. The Electronic Frontier
Foundation, Public Knowledge, the American Civil Liberties Union, Duke University’s Center for
the Study of the Public Domain and the Stanford Fair Use Project have all taken action on fair use.
Between the scholars, the creators, artists, and organizations, fair use is emerging out of a
twilight existence where, for decades, it had lived. During those decades, many professionals and
especially professionals in the corporate media environment—whether broadcast journalism, cable
documentary, or newspapers—routinely and extensively employed fair use. But if you weren’t a
professional, you might not even have heard of it. That has changed.

The goals of various actors in this resurgence of fair use differ. Some simply want to assert their
rights to be able to improve their work, lower their costs and start or grow new businesses. Some
want to expand the sphere of freedom of expression, so that copyrighted culture does not become
off-limits for new work. Some believe that an expansion of fair use rights is imperative both to keep
fair use as copyright policy is tinkered with, and to maintain the crucial principle of balance between
owners’ rights and the society’s investment in new cultural creation. Some believe that fair use,
exercised to the maximum, will provide concrete experience of the limitations of today’s copyright
law, and point to more effective change. They all share a common understanding that individual and
community action simply to assert their rights has an immediate and long-range effect on markets
and policy.

The resurgence of fair use, the topic of this book, forms part of a much greater discourse in the U.S.
and world-wide, critiquing the most stifling, confining features of copyright practice today. That
discourse is variously called copyright reform, copyfighting, the copyleft, and cultural/creative/intellectual commons, depending on your angle of entry. Some people call it a movement, though
it still lacks evidence of broad social mobilization (as Patrick Burkart has noted for music). The
people in this discourse share an acute awareness that copyright policy and practice are tilted unfairly
toward ownership rights, in a way that prejudices the health and growth of culture. This broader
discourse is evident in many ways, besides the efforts to make fair use more useable: proposals for
formal copyright reform; efforts to create copyright-light or copyright-free zones or to expand the
public domain; and civil disobedience.

Some propose copyright reform to shrink the monopoly claims of owners. Veteran legal scholar
Pamela Samuelson has proposed reconceptualizing copyright law from a blank slate. She imagines a
simpler, shorter copyright law, grounded in principles rather than the “obese Frankenstein monster”
it has become through stakeholder pressure and endless tinkering. Neil Netanel has proposed a
range of tweaks to pull back the extent of copyright protection, such as limiting copyright length
and dropping protection against the preparation of derivative work, so that less licensing is needed.
Lawrence Lessig also has argued for simplifying and minimizing copyright protection for owners.

Some people offer suggestions to improve the efficiency of licensing, which today is messy,
clumsy, and frustrating. Prof. David Lange, for instance, proposed increased use of statutory (or
compulsory) licensing schemes, such those that allow today for the retransmission of TV signals
by cable and satellite systems. Others have suggested new voluntary digital platforms through
which users could make “micro-payments,” tiny payments for each individual access to copyrighted
material offered commercially. Legal scholar William Fisher has proposed a voluntary collective
administration system, akin to those that today enable public performances and broadcasts of
music, and to collect licensing payments through Internet service providers and distribute them
to copyright owners and artists whose material is used online. Some copyright owners, including
the Association of Commercial Stock Images Licensors, are even toying with how to restructure their own
licensing schemes, to eliminate archaisms such as regional rights in a transnational Internet age.

The ideas and projects all respond to the real problem that copyright law now fits ever more poorly
the way people are actually making culture. They may well take some time to become useful, though.
The big stumbling block both to fundamental copyright reform and to licensing reform is that large
copyright holders—key stakeholders in any change in licensing schemes—are not able to agree on
what they would like to do. They do not know what business models will be most relevant in a few
years, so living with a lumbering, archaic licensing system with a lot of holes in it looks better to
them than change that might have unanticipated downsides. As major stakeholders in any legislative
reform, they will stall, derail or rewrite legislation in the same unbalanced direction as today, until
their interests shift with shifting business models. As major actors in licensing, they will collaborate
on new methods of licensing when they understand how emerging business models favor their
interests.

Another part of this broad copyright critique is a range of efforts to expand copyright-free and
copyright-light zones, discussed by David Bollier and James Boyle. People in this arena often
invoke the phrases “the public domain,” “open access,” and “Creative Commons.” Projects such
as open source software (collaboratively created and freely offered software), open source (free
and accessible to all) academic and scientific journals and databases, and OpenCourseWare (freely
available curriculum materials) offer such alternative zones. The various Creative Commons licenses
contribute to this alternative zone by offering a way for creators to give their work away more easily,
although with conditions, by labelling it appropriately.

These efforts have indeed created significant copyright-light zones, as well as creating enormous
enthusiasm for a more flexible copyright policy. They work well for people who want to give their
work away and share it without economic reward. A pool of noncommercial works now exists, but
it is tiny compared with the field of copyrighted and often-commercial work. Viacom and News
Corp will continue to copyright their holdings and treat them as assets. The existence of copyright-
light zones, however large, does not address the frequent need that people have to access mass
commercial culture to make new cultural expression.

Finally, copyright critique is seen in opposition and resistance, such as giddy, open flouting of
copyright law by “culture jammers,” pranksters and appropriation artists. Burkart describes this
work as part of the incipient and still-inchoate cyberliberties social movement, taking up “the politics
of symbolic action,” typically “weapons of the weak.” These people and groups—Negativeland, the
Yes Men, Adbusters magazine and others—position themselves on the margins of official culture,
and see themselves as reclaiming culture one image or gesture at a time. They also see themselves
as challenging the terms of long and strong copyright. Ironically, many times the uses they make of
copyrighted material are actually completely legal fair uses.

This broad and diverse discourse calling for changes in long and strong copyright thus has many
faces and approaches, each with opportunities and limitations. They add up to a broad public
awareness of trouble around long and strong copyright. Within this discourse, efforts to make fair
use more useable stand out because they can be done now, by people in many walks of life; they can
be publicized and celebrated, thus spreading the word; and because using this right expands its range
of uses.

Fair use is not necessarily a popular phrase for all in this broader collection of copyright critics.
Some regard it as hopelessly compromised because of technologies such as encryption, which
override a user’s will to excerpt. Some believe that exemptions such as fair use are good but that
fair use is too murky or unclear to be a helpful exemption. Some believe that fair use partakes too
much of the status quo, and that another copyright-free world is possible. One way that concern
is expressed is to argue that it is too limited a doctrine, and that we need to reach beyond it to
accomplish our goals.

In fact, under the current interpretation, fair use does apply in a wide variety of situations. They
range from making copies of TV programs on our DVRs to creating digitally annotated critical texts
to making an archive of the worst music videos ever to making relevant curriculum digitally available
to students. Fair use has evolved, having different functions at different moments in U.S. history.
Today it has an ever-growing importance and value within copyright, as a primary vehicle to restore
copyright to its constitutional purpose, and the transformativeness standard assists in creating that
value. Fair use is like a muscle; unused, it atrophies and exercise makes it grow. Its future is open;
vigorous exercise will not break fair use.

Fair use will continue to be important, no matter what the success of other aspects of long and
strong copyright protests and proposals. Even if we could wave a magic wand and execute reform
of copyright policy that rolls back some of the longest, strongest terms in copyright policy, fair
use would still be an important tool to free up recent culture for referencing in new work. Even
if licensing were much easier than it is today, it would never address all the needs people have for
use of copyrighted material. Even if copyright-light zones vastly expanded, the need to access the
copyrighted material existing outside those zones without permission or payment would still remain.
Sometimes people need to use materials that the copyright owner simply will not license to them.
Fair use will be important to anyone working in the cultural mainstream. Culture jamming can be
fun, although some culture jammers are actually just employing their fair use rights without knowing
it. But most creators, teachers, learners and sharers of information don’t see themselves as criminals
or pirates, and don’t want to.

Reclaiming fair use plays a particular and powerful role in the broader range of activities that
evidence the poor fit between today's copyright policy and today's creative practices. In a
world where the public domain has shrunk drastically, it creates a highly valuable, contextually
defined, “floating” public domain. The assertion of fair use is part of a larger project of reclaiming
the full meaning of copyright policy—not merely protection for owners but the nurturing of
creativity, learning, expression. Asserting fair use rights and defending the rights of others to use
them is a crucial part of constructing saner copyright policy.

"Reclaiming" fair use is fine - but what you are really pushing for is radial expansion. EFF has this stand as well, attempting to expand the concept of fair use so dramatically as to effectively neuter almost all rights that musicians would have to their performances.

You need to stop trying to hide the goal of radical expansion of fair use under some sort of "reclaim" - you will never show anyone that, in the last 100 years, that you had those rights to start with.

The expansion of copyright to life + 70 is a very recent phenomenon. A hundred or so years ago, works were given to the public domain within 17 years. So yea, it is reclamation. It is reclaiming the rights of the people to utilize culture; a right that has been whittled away from them by decades of copyright expansion.

no, thats a misnomer, what you want to "reclaim" is the right to use someone else material/story/painting/music/whatever for your own use, for you to make money off of, so you dont have to work at creating anything on your own

The Book club isn't going to fly...

even with excerpts of whole chapters when the $0 marginal cost eBooks are being offered for the high, high price of $17. Or $7 (!!!!) to rent it for 30 days.

Hopefully the authors at least ensure the book is made available to "loan" in electronic form via local libraries.

Maybe it's a nit, but every eBook so far has suffered from this same fatal flaw. Runs counter to all the CWF+RTB arguments made by The Masnick, treats the abundant as scarce and makes a tiny attempt to sell the scarce. How am I supposed to take a Techdirt book club seriously when the business model of every book offered seems to have adopted the worst, most backward facing features of Big Publishing.

Give us $3 eBooks or give up the book club. The whole venture is harmful to the brand at this point.

Re: Re: Re:

You'd be surprised. If you want to use the works of classical composers who have been dead for centuries you still have to ask the permission from whatever orchestra performed the file. The work is public domain, but it's not free for all.

Re:

>no, thats a misnomer, what you want to "reclaim" is the right to use someone else material/story/painting/music/whatever for your own use, for you to make money off of, so you dont have to work at creating anything on your own

Funnily enough, that's exactly what the RIAA has been doing. Your point is a joke.

Fair use versus extending copyright

@Anonymous Coward, May 18th, 2012 @ 8:09pm
It could be considered as to whether extended copyright coverage and term extensions have increased the importance of fair use and possibly other exceptions. When John Bailey of Plagiarism Today talked about copyright terms extensions being bad for artists, he mentioned the possibility of near-infinte copyright terms leading to such balancing measures as broadened fair use, among other possibilities. (With regard to proposed "orphan works" legislation, there was the issue that such an exception could reduce the rights of artists. At the same time, the extension of copyright terms is likely to exacerbate the issue of orphan works.)

Re: The Book club isn't going to fly...

even with excerpts of whole chapters when the $0 marginal cost eBooks are being offered for the high, high price of $17. Or $7 (!!!!) to rent it for 30 days.

That was the last book. This one is somewhat cheaper.

Maybe it's a nit, but every eBook so far has suffered from this same fatal flaw. Runs counter to all the CWF+RTB arguments made by The Masnick, treats the abundant as scarce and makes a tiny attempt to sell the scarce. How am I supposed to take a Techdirt book club seriously when the business model of every book offered seems to have adopted the worst, most backward facing features of Big Publishing.

I understand why you're upset, but we specifically decided that the book club is to focus on the content of the books, not the business model of the books. If there were lots of high quality books that were offered in a cheap manner, then we'd focus on those. But we are focused on the overall content, not the business model with this program.

That said, I think you'll be happy with our June choice...

We will continue to focus on content first, but with a definite eye towards making sure that the prices are at least somewhat reasonable.

Give us $3 eBooks or give up the book club. The whole venture is harmful to the brand at this point.

Really? I value your opinion, and you've always been a great commenter on stories, but don't you think it's a slight exaggeration to say that suggesting *REALLY GOOD BOOKS* -- even if they're priced above what you want to pay -- is "harmful to the brand"?

Look, the ability to self-publish or do more creative things is a relatively new phenomenon. Very few people are doing it and even fewer are doing it well. They'll get there. But for a lot of these authors, they signed these book deals 2 to 3 years ago, when these options really weren't there.

I'm not going to hide a good book just because of the business model. Frankly, if the cost is that big of an issue, nearly all of these books can be "found" in electronic formats if you want them.

In the meantime, we've gotten almost entirely good feedback on the effort with the first two books. That's not to discount your feedback -- which, trust me, I hear and understand. But the point of this is to focus on *good books*. We get requests for recommendations for books all the freaking time. And so now we're doing that. I think it's a bit of an exaggeration to say that suggesting a good book and saying let's talk about it is "harmful to our brand."

Re: Re:

You are confusing extension of term with expansion of rights. Copyright as a concept has not expanded in definition at all. However, fair use, in it's current form, chipped away some of those rights. The ideas (put forth by groups like EFF) to radically expand fair use (including to allow for sample use in songs without permission) are pretty intense.

This is doubly important in places where there are no specific fair use provisions - remember, fair use is the only area in copyright where "rights" are changing compared to what they were originally under copyright law.

Fair Use Serves Too Many Goals

I suppose future excerpts might address this, or maybe I should just buy the book ... but it seems that fair use is trying to do too many things at once.

There are lots of interests at stake when arguing for fair use. A handful off the top of my head:

* First Amendment rights to critique the original work
* A reluctance to impose penalties for "harmless" infringement
* A subsidy for favored uses like education
* A way for judges or other policymakers to fine-tune copyright and maximize the overall variety of works being produced
* A fallback for uses that sort of but don't quite fall within other copyright limitations like first sale or the inability to copyright facts

Trying to cram all of these uses into fair use might be why it's this vague balancing test that's so easily abused by well-lawyered interests. Maybe one way to "fix" copyright would be to split fair use up into multiple independent defenses.

There a more and more examples of copyright abuse by vested interests which clearly show the need to re work the entire process and internationalize the laws.

A recent example was the Rock Band called 'Men at work' they produced a hit in 1983 "Down Under' I think. They were found guilty of copying a short flute melody that mimicked the melody from an australian childrens song in the 1930's Called 'kookaburra sits in old gum tree"

Turns out that the original copyright on the childrens song ran out when the author died and a new company bought the rights and then proceeded to sue the Rock Band, incredibly the judge found in favour the new copyright owner!

Sad end to the story is that the Rock band flutist died recently after losing his house, the only asset he had from his days in the rock Band. He was said to be gutted by the decision and sick at being called a plagiarist for simply mimicking a few notes as a parody to the original song. He was someone who taught kids from poor suburbs to leanr music and was loved by many...

This is the type of insanity that will become common if laws like Sopa and Pipa every get passed, as the above story and great article above shows, copyright is already becoming immoral and creatively and socially destructive.

Re: Re: Re:

Actually, I keep giving opinions and alternatives on that. And yet you and your ilk do not respond to that.

For example:

1) 5+5 copyright terms
2) 2+2 patent terms
3) Copyfraud punished with immediate revocation of all other held copyrights
4) Patents to actually be in a marketable and producable product within 12 months of application or it gets removed

This is all, of course, based on the statistics the USPTO and the RIAA/MPAA keep claiming for profitability.

Re: Re: Re:

>Copyright as a concept has not expanded in definition at all.

What about instances where blogposts and reports were demanded to be taken down based on copyright law? Even if the concept hasn't "expanded in definition", there are a lot of interests behaving like it already has.

Re: Re: Re:

You are confusing extension of term with expansion of rights.

Artful at best. While the law may not have technically expanded its scope (I wouldn't know in legal terms IANAL), there is no doubt whatsoever that it has expanded in intepretation and regularly encroaches on other pre-existing rights like the doctrine of first sale.

Re: Re: Re:

ProtectIP, DMCA, SOPA, PIPA, ACTA, and TPP. All attempts to expand the definition of copyright. Not to mention that it's been extended fifteen times in the last 30 years. It's become a tool of maximalists and mercantilism, nothing more, and needs to be radically scaled back.

In case you're unaware, the original time limit in the Constitution was 14 years, with one (just one) optional 14 year expansion. Going back to that would be a good step. Most profit from works is made within the first few years anyway, so anything more than that is completely unnecessary.

Re: Re: Re: Re: Re:

The DMCA's addition of rules making the cracking of DRM a crime is most definitely an expansion of copyright powers that did not previously exist. As is the new idea that you cannot make a single personal backup copy of your purchase.

Rush Limbaugh just tried to get a video critique of himself taken down on copyright grounds, despite the fact that it clearly falls under the exemptions allowed by critique - and he was temporarily successful. In older times, that would have had to go to court first. Nowadays, he just had his lawyers send a boiler plate DMCA takedown notice, and *poof*, gone.

The doctrine of first sale is being challenged and may disappear or be heavily modified.

The traditional fair use exemptions for universities have been under attack for 30 years. I'm willing to bet that will begin spreading to secondary schools in the near future.

Furthermore, an extension of time is an expansion of copyright in two ways. First, items that are niche or do not find heavy popularity fall out of print and cannot be preserved by institutions dedicated to doing that (libraries) in a way their patrons can access effectively (i.e., digital). This means that copyright has the power to essentially erase a low popularity work from the cultural canon, even if it would have performed an important niche or genre function.

Second, high popularity works that have high impact on mainstream culture cannot be adapted at a later time if the company is not amenable. For example, look at Disney's power to lock up its own canon, even to the extent of attacking fanartists who disclaim any relationship to the company. For that matter, look at how Disney can erase its own history. It might be very interesting from an academic or social point of view to examine the complete Song of the South and its portrayal of races and race relations and what those reveal about the attitudes of many white people in the WWII era. Will you find that very important discussion happening through that medium in today's schools? No, because Disney deep-sixed portions of the film like there was no tomorrow and can prevent any kind of distribution that would allow those claiming fair use to even get ahold of a complete copy. This for a film released in 1946.

If the exemptions have changed, the time limit has changed drastically, and the enforcement has changed, all of that means that copyright itself has changed, and not just in some "la-la it's just a little time extension" way.

Fair use and multiple utilities, plus more

Thank you all for your engagement with the second part of the first chapter of our book. As the chapter itself concludes, people do look to fair use with different expectations. Andrew mentions several, and I just wanted to make sure we're clear.
At the 30,000 foot level, what fair use says is that copying others' work is legal, when you are adding value (reusing it for a different purpose/transforming), and the cultural benefit is greater than the individual monopoly rightsholder's loss. That's very vague, it's true, and the four factors don't really make it much clearer, do they? But the vagueness was by design, in order to ensure that new cultural creators, and new cultural expression, isn't stymied by inability to access existing culture. There are probably a host of reasons why people might want to quote copyrighted culture on the way to making new expression, and the law shouldn't get into itemizing all of them for people. Inevitably, something will get left out, something won't have been thought of, and something will get chewed over by rival stakeholders and spit out unrecognizably in the law. I want in the rest of this post to take up how people can and do and have made it easier to fill the abstract form of fair use doctrine in the law with living, breathing creative practice. But first I want just to comment on Andrew's interesting examples:
* First Amendment rights to critique the original work: Fair use doctrine actually allows you to exercise your First Amendment rights to do a wide variety of expression, not just critiquing. The fair use doctrine is the lever within copyright policy that allows everyone to exercise their First Amendment rights.

* A reluctance to impose penalties for "harmless" infringement: This is actually something else, specifically, as Tim Wu calls it, tolerated use. Fair use is employed without permission. Infringers also employ work without permission. When you the owner don't care and it's infringing, that's tolerated use. When you the owner care and you charge the fair user with infringing, that is when the right of fair use is actively flexed for the first time. Until then, people simply use their right of fair use without having to actually invoke it.

* A subsidy for favored uses like education: Don't forget about specific exemptions, e.g. for the sight-impaired, for educators and for librarians. These are specific exemptions; it is the limitations of these exemptions in a digital age that sometimes makes educators and librarians also explore their fair use rights.

* A way for judges or other policymakers to fine-tune copyright and maximize the overall variety of works being produced: The fair use doctrine was made explicit in legislation for the first time in 1976 to acknowledge, at a time of vast expansion of rightsholders' monopoly, the need to explicitly rebalance copyright and hold true to the core purpose of copyright policy, which is to provide incentives for creating more culture.

* A fallback for uses that sort of but don't quite fall within other copyright limitations like first sale or the inability to copyright facts: Fair use is indeed a doctrine designed to be a broad and flexible exemption going beyond specific other exemptions that also balance copyright monopoly rights holders' rights.

It's also true, as others have noted, that explicit employment of fair use has risen in importance since the metastasizing of monopoly owners' rights post-1976. Previously, explicit fair use often wasn't needed, because so much of culture wasn't copyrighted (and not all of us could both create and share so easily, too). But post-1976, fair use becomes ever more important, as the Supreme Court recognized both in Eldred and Golan. (I'm personally deeply unhappy with both those rulings, but from this perspective it's interesting that the court used fair use as the reason why copyright isn't unconstitutional.) So if it's that important, we probably need to test out whether we can really use it.
We've now worked with 10 communities of practice (the story is in the book), each of which have crafted codes of best practices in fair use, and each of which have found these codes to be easy-to-use and widely trusted guides to their fair use reasoning. Each community's codes are different because they all have different reasons to employ fair use. The problems dance archivists face aren't the same ones that poets face. But each of them participates in the same basic logic (also discussed in the book).
On a personal note, it has been an extraordinary experience to work with people from these 10 communities of practice. I have had the privilege of watching people change from people who either were afraid or frustrated to people who liberated their own creative and professional decision-making, and often made more interesting work. Some of those people are the people who went to the Copyright Tribunal and won DMCA exemptions; they were people who became not only better creators, but active citizens on copyright issues. Some of these stories are also told in the book.

Price of ebooks

I note that at least one person is seriously annoyed at the price of ebooks. I would like to add my annoyance to that complaint. I believe that University of Chicago Press served us and the people who read our book very well in many ways; among other things, the high prestige of the press gave legitimacy to our perspective that had not come even with spectacular real-life successes (chronicled in the book). What I understood from them, as we worked hard for low prices (and btw I am extremely happy, in comparison with other serious/monographic book prices, with the $11.70 price for hard copy and $9.35 for Kindle on Amazon), the ebook market is still really new to them and they're both encountering some serious investment costs in managing new platforms and unsure about the business model. So I understand what they're doing in pricing ebooks close to the hard copy price, but it's also very frustrating, in many ways. I appreciate the good will of readers about this so much less than ideal situation.

Re: Re: Re:

Re: Re: Re: Re: Re: The Book club isn't going to fly...

So let me get this straight, the above poster didn't deny something in a post about someone else, and so that makes it true by proxy? Wtf? You definitely have clinical psychosis. No normal person thinks like that.

Re: Re: Re: The Book club isn't going to fly...

You do understand the rather basic difference between making a factual statement and advocating for something, don't you? Pointing out that cars on the highway speed is not the same as saying you should speed.

I would think that most people who aren't just here to try to falsely tar and feather me can understand that rather simple concept.

Separately I would think the fact that the author of the book I'm talking about is participating in these comments and doesn't seem bothered by my comments would lead most sensible people to conclude that I didn't say anything bad.

Re: Re: Re: Re: Re: Re:

That is incorrect, AC 40. The public domain, by its very definition, has no copyright. It is the very opposite of copyright, in fact, and was always intended to be a continually grow pool of culture from which every generation of creators can draw. However, because of the distortions in copyright law over the last thirty years, that pool has been shrinking, not growing. It is a situation which must be remedied.

Re: Trolling nonsense

"The constant expansion of copyright is simply not necessary."

Copyright has not been expanded, it has actually contracted in the last 20 years. The term has extended, but the fair use provisions and judgements in that area have certainly limited copyright in those areas.

Further, widespread piracy is also a reduction in copyright's effects and effectiveness.

You need only to look at the VCR judgements to understand that copyright is NOT expanding, but in fact contracting.

You, like others here, confuse term extensions with rights expansions. That is just not the same thing.

Re: Re: Re: Re: Re: Re:

"Rush Limbaugh just tried to get a video critique of himself taken down on copyright grounds, despite the fact that it clearly falls under the exemptions allowed by critique - and he was temporarily successful. In older times, that would have had to go to court first. Nowadays, he just had his lawyers send a boiler plate DMCA takedown notice, and *poof*, gone."

Quite simply, any law can be poorly applied, and any single judge can get things wrong. It's why the US system is based not only on judgement, but on appeal and a structured system for dealing with it.

A single judge booting something isn't a reason to throw to throw out the law.

DMCA also didn't expand copyright one bit. Rather, it's an attempt to deal with reality.

Basically, if you an violate copyright a million times in a second, should there not be a mechanism for protecting right holders that runs at about the same speed? It seems you view is rather one sided on this.

It is the most dishonest argument around to spend a bunch of time looking at the older works (which mostly are not very relevant or in demand) and using them as the basis to completely decimate copyright law - just to satisfy your current urge for free content. It's transparent and and embarrassment to see how far people will go to justify piracy pr at least to entirely downplay the illegal acts going on.

Re: Re: Re: Re: Re: Re:

"Furthermore, an extension of time is an expansion of copyright in two ways. First, items that are niche or do not find heavy popularity fall out of print and cannot be preserved by institutions dedicated to doing that (libraries) in a way their patrons can access effectively (i.e., digital). This means that copyright has the power to essentially erase a low popularity work from the cultural canon, even if it would have performed an important niche or genre function. "

Quick, without consulting the Techdirt cheat list, please list 10 items that fall into this category. You cannot use outside sources, I want the 10 items that hurt your life personally.

piracy and beyond

I think Mike is quite right to point out that most likely if you want to find a bootleg copy of something, almost anything, you can. That's been true, at least, of all the recent books I've published, and this is probably no exception. Anyone who releases work in this moment in history would be foolish to think that wasn't going to happen. Some of us think that we're really not losing a market opportunity, between free promotion/publicity/word of mouth and the fact that many people who bootleg wouldn't buy the product anyway.
But as I read the thread, this exchange, which appears to be precipitated by a "gotcha" sensibility, is a red herring to what I hope can be the discussion, which is how people can use their rights within the law more effectively, and in a way that can 1) allow them to do more and better work more easily 2) create a constituency for a far more balanced copyright regime, by making more people aware of their rights and 3) create a group of people who actively become citizens and defenders of these rights 4) explore the boundaries of today's law so that at the moment when legislative action (including rebalancing) may occur they can document what they couldn't and could do successfully when they actually used their rights under the law.

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10 niche works? First, most of them are barely accessible, so I would be hard pressed to find them or know they existed. Hence the issue.

Now, let's start with music. I have a professional interest in what musical expression tells us about history. I recently went looking for copies of American Civil War era songs, preferably ones performed during the Depression or WWII as a form of commentary (much the way Christian spirituals were revived in the 60s to comment on that period).

I found 6 files that were clearly marked as "public domain" or "creative commons". Two of them were actually marked as CC that required a fee for commercial use, which I luckily wasn't doing. There is no way in the world that 6 files are all that's left from that period, yet that's what's been digitized and clearly marked online in a Google search. Where are the huge collections of 100+ performances? Missing, and they will continue to be as long as "life plus 70 years" makes it libraries and collectors nervous.

We don't just lose some nebulous thing called "culture" when we close off these works. We lose our history. Artistic expression is speech/commentary, often the only kind that flies under the radar of social stigmatization or official censure, and those opinions are lost to history if we can't access them digitally today.

For a second example, I used to work at an educational institute that shall remain nameless, in the department where materials were converted for blind and dyslexic students. This is mandated by law and also the right thing to do. We frequently had issues because scanning a book over 75 years old is a nightmare and the libraries would not always even let us do it, because the work had been out of print since before I was born and they were worried about damaging it. While a sighted student could use the book within the library's reading room, the non-sighted student could not. We would often scour Google Books to see if someone had already scanned something in. That worked great - until people started making Google Books take things down. They became more cautious, and many of the materials we needed stopped showing up there.

Having a human being read aloud a 100-page book for a course became a legal requirement in many cases, but it is both sub-optimal for the blind student (many of them listen to our OCR'd files at 1.5x speed to keep from falling behind, which the computer voice can handle but the human recording can't) and for staff, who could waste many valuable hours reading aloud instead of the much faster process of OCR. Therefore, staff could serve fewer students and also cost the university more. All because common sense could not be applied because it contradicted the letter of the law.

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Of course there's still a copyright on the PERFORMANCE. Professional philharmonics want to be paid when someone wishes to license their recording in another product. There is nothing wrong with that. You can always find MIDI or AU renderings of pieces (or even make your own) if you want to use them in a project.

The problem with fair use is that it's a judicial test, not a right outlined in a statute. The criteria for fair use are subjective and is determined on a case-by-case basis. Most people simply do not have the resources to risk a lawsuit so they will settle, cease and diciest, etc. even though their actions might fall comfortably within a fair use scenario. I would like to see future legislation take this into account. Anti-SLAPP statutes are a good start in this direction, but so far they're mostly designed to reduce the cost of the defense. To be effective, they need to go further and penalize plaintiffs who are determined to have sued in bad faith. I'd like to see many of the fair use cases, news, parity and non-commercial use become part of copyright law.

Film production costs and "use it or lose it" regarding fair use

In a Stay Free! article on "use it or lose it" for fair use, the comments include a response from Nina Paley (Jun 25, 2005 8:30:34 PM) about the ability for modern filmmakers to produce documentaries (and possibly other "indie" films) for lower budgets than before. From what Nina mentions, film production costs in past eras were so much more expensive that the additional costs of copyright clearance were not a significant addition. It may be too easy for copyright clearance fees to be set with traditional film production in mind. In addition, fewer documentaries were made in the past and independent films may not make a significant profit even with public distribution. Though fair use does not (and should not) cover all reusage, the ability to rely on fair use when it applies (as opposed to clearing usage due to risk aversion or liability) is beneficial.

When Wired News talked about educating parties such as documentary filmmakers about fair use, one of the mentioned benefits was to avoid a "fear and loathing" situation where filmmakers and other persons come to regard copyright as a troublesome obstruction or a labyrinth and may decide "just screw copyright altogether" or something like that. Another issue mentioned is that establishing licensing for a situation where fair use would seem appropriate (such as a documentary filmmaker using footage where a TV show can be seen briefly playing in the background) could make it harder for others to claim fair use in such situations.

Re: Re: The Book club isn't going to fly...

I may have engaged in a bit of hyperbole. But maybe not. I'm not claiming it's going to destroy the brand. It's more that I'd look at the options and weigh the choices differently. And saying it's harmful to the brand isn't the same as saying it's bad business, or uninteresting.

But a strong part of the Techdirt brand is the CWF+RTB thing, alongside giving away (or selling at low cost) zero margin products while making money on the scarce. This project is undoubtedly highlighting that it's not possible today for many authors-- that's not the part that hurts the brand.

What's damaged the brand to me is you've been (so far) unwilling to seek out a book that fits in the CWF+RTB mold, which suggests maybe you aren't practicing what you preach. Techdirt has been about embracing new business models, encouraging creatives to take chances, and you've in turn used your platform to promote artists & authors that have done so. But not this time. I think that's a net negative.

Now, maybe you can weigh all that and decide that you'd rather just choose books based on content alone and any brand diminishment is more than offset by gains in community engagement and personal interest. And maybe I'm just plain wrong about the brand being harmed. But I don't think it can be dismissed out of hand, either.

Appreciate your response here. I certainly am much more likely to comment when I have a counterviewpoint. Truth is, about 95% of my comments would be "megadittoes" but when I do have a different take I don't hesitate to share it, right or wrong.

Re: Re: Re: The Book club isn't going to fly...

What's damaged the brand to me is you've been (so far) unwilling to seek out a book that fits in the CWF+RTB mold, which suggests maybe you aren't practicing what you preach.

This is wrong. First of all, CwF+RtB does not necessarily mean it's given away for free. First, we have worked VERY HARD to find good authors and good books that are offered at a lower price. But they are few and far between. To date, you've seen 3 books. To claim that we're unwilling to look for those books is unfair. We've looked. They are not that widely available.

And, again, our focus here was good book first, business model second. And these authors have all been quite willing to connect with their fans. I don't think it's fair to say the only way is to offer a cheap book.

Now, maybe you can weigh all that and decide that you'd rather just choose books based on content alone and any brand diminishment is more than offset by gains in community engagement and personal interest. And maybe I'm just plain wrong about the brand being harmed. But I don't think it can be dismissed out of hand, either.

Again, it's not *just* based on content. We've based it on both things but content is the key. Doing it just because the book is cheap hurts the brand much more in my opinion. The point of this wasn't to highlight authors doing cool business models, but to highlight the interesting ideas in the books. Yes, we'd like them to be doing cool things on the biz model side too, but as I said, there are very very few of those, and getting them to agree to take part is not as easy as you think. Contrary to your claims we've been trying.

So, once again, I respectfully disagree with you and suggest that you not assume what we are doing when you don't actually know.